University Times

Contrary to claims by ACLU attorneys and others seeking to force Pitt through the courts to extend health benefits to employees’ same-sex partners, the University has never attacked the city’s anti-discrimination ordinance, Pitt General Counsel Alan A. Garfinkel reiterated in an interview yesterday.

“Our position has always been that the city ordinance, as amended in 1990 to prohibit discrimination based on sexual orientation, does not require employers to offer health benefits to their employees’ same-sex domestic partners,” Garfinkel said.

Pitt re-stated that position in a brief filed in Allegheny County Common Pleas Court last month, asking Judge Robert Gallo to permanently bar the city’s Human Rights Commission (HRC) from hearing a discrimination case against Pitt by seven current and former employees.

The plaintiffs say Pitt violated the city ordinance by denying health benefits for their gay and lesbian partners.

In an April 2001 ruling, Gallo sided with the University, issuing a preliminary injunction stopping the HRC from hearing the case. Gallo concluded then that “the denial of health benefits to Pitt employees is based upon marital status, not sexual orientation.”

Garfinkel said Pitt’s administration has no intention of complying with a recent Faculty Assembly resolution that asks the administration “to instruct University attorneys to withdraw the part of [last month’s] brief…that attacks the validity of the Human Rights Ordinance of 1990.”

Garfinkel said, “Our opponents would have us give the benefits and follow the city ordinance, which is in many respects inconsistent with state law.” He referred to a 1999 law that exempts Pennsylvania’s state-related universities from municipal ordinances requiring them to provide health benefits.

In a Jan. 21 response to Pitt’s most recent brief, ACLU attorneys representing the plaintiffs said the state law amounted to “stealth legislation” that was enacted in a manner violating Pennsylvania’s constitution. See Jan. 23 University Times.

Garfinkel pointed out that when the city amended its anti-discrimination ordinance in 1990 to prohibit employment discrimination based on sexual orientation, the city itself did not feel compelled to award health benefits to city employees’ gay and lesbian partners.

“The city never awarded health benefits to same-sex partners until 1999, when they passed an amendment to the ordinance, specifically requiring the city to provide those benefits,” Garfinkel said. “Why would the city need to amend its ordinance in 1999 to provide these [same-sex] benefits if the original ‘sexual orientation’ language of 1990 mandated it?”

Attorneys from Pitt and the ACLU have taken turns blaming each other for breaking a 20-month moratorium on litigation in the same-sex benefits case.

In May 2001, both sides had agreed to a truce while a University committee made up of trustees, administrators, faculty, staff and students examined the question of extending health coverage to employees’ unmarried partners. In June 2002, the committee issued a report recommending that Pitt eventually join the growing number of employers offering health benefits to domestic partners — but that it “would not be prudent” to do so in the near future, partly because of opposition among state lawmakers.

According to Garfinkel, it was the plaintiffs and their ACLU lawyers who re-opened litigation by trying to get the case reassigned from Judge Gallo to another Common Pleas judge, Anthony Wettick.

“We resisted. Judge Wettick agreed, and sent it back to Judge Gallo, who set a schedule for submitting briefs,” said Garfinkel. “Because Pitt had originally initiated the case in Common Pleas Court, we had to file our brief first. But it was never our goal to re-open the case. We have never believed that litigation was the way to resolve this issue.”

The University Times could not reach plaintiffs’ attorneys for comment late yesterday.

Responding to criticism such as one Faculty Assembly member’s suggestion that Pitt’s legal strategy “may be good lawyering, but it’s bad ethics,” Garfinkel said: “It’s a little difficult to be called ‘morally bankrupt’ and ‘bigots’ in the newspapers by our opponents. I’ve been at Pitt for three and a half years, and I must say that I am surrounded by people here who are anything but morally bankrupt and bigoted.”

He emphasized, “We are in a defensive posture in this case. We keep being painted as the people who brought this legal action, but we are the ones who are being sued. We are the ones who negotiated the moratorium on litigation.”

Instead of suing the University, proponents of same-sex benefits at Pitt should lobby for change in Harrisburg, Garfinkel said.

Chancellor Mark Nordenberg “has made exhaustive efforts to work with his colleagues at the other state-related universities, in an effort to get a united front,” said Garfinkel.

—Bruce Steele